In Christie v. National Collegiate Athletic Association, the Supreme Court will decide whether the 1992 Professional and Amateur Sports Protection Act (PASPA) prohibition against state-sanctioned sports gambling is unconstitutional commandeering.

New Jersey first amended its constitution to allow some sports gambling and then passed a law repealing restrictions on sports gambling. It both instances New Jersey Governor Chris Christie was sued for violating PASPA. In both cases, Christie responded that PASPA unconstitutionally commandeers states in violation of the Tenth Amendment.

Per the anti-commandeering doctrine, “Congress ‘lacks the power directly to compel the States to require or prohibit’ acts which Congress itself may require or prohibit.” In short, the federal government can’t assign its own work to states and local governments. 

The Supreme Court has only struck down laws on anti-commandeering grounds twice. In New York v. United States (1992), the Supreme Court struck down a “take-title” provision requiring states to take title to radioactive waste by a specific date, at the waste generator's request, if they did not adopt a federal program. And in Printz v. United States (1997), the Court struck down a federal law requiring state and local police officers to conduct background checks on prospective gun owners.

The Third Circuit distinguished PASPA from the laws at issue in New York and Printz, noting that PASPA did “not present states with a coercive choice to adopt a federal program” or “require states to take any action.”

In his certiorari petition, Christie describes the lower court’s decision as “a sea change to our system of federalism.” “Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct.”

His petition goes on to describe the effect of the Third Circuit’s decision using real-world examples: “Future efforts by states to legalize private conduct currently prohibited by state law—anything from recreational use of marijuana, to carrying concealed firearms, to working on Sundays—can be thwarted not just by a direct federally enforced prohibition of that conduct, but now also by a federal ban on state legislation that ‘authorizes’ such conduct.”

Anti-commandeering doesn’t come up too often but it has been a prominent issue in the sanctuary cities litigation where a federal district court held that the executive orders threat to take away all federal grants from jurisdictions that refuse to honor Immigration and customs enforcement detainers amounts to unconstitutional commandeering.